Thursday, February 17, 2011

Through an eWEEK article I became aware of a patent law firm's reexamination alert, according to which Google asked the US Patent & Trademark Office (USPTO) to reexamine four of the seven Java-related patents asserted by Oracle. [Update] A day later, it became known that Google also put in a reexamination request concerning a fifth Oracle patent.

The author of those posts, Scott Daniels of Westerman Hattori Daniels & Adrian, sees a possibility that Google may soon request reexamination of the other asserted patents as well, and might move "to stay the case pending completion of the reexamination proceedings, but such a stay might not be granted since Google and Oracle America are direct competitors and since reexamination could not resolve the copyright allegations."

Concerning the latter, Google yesterday asked the court for permission to file a motion for summary judgment, a procedural move by which Google would like to have Oracle's copyright infringement allegations thrown out in the short term. Google asserts the following:

"These [copyright] issues are ripe and can be decided without further discovery as a matter of law, thereby simplifying the issues and conserving resources."

If the court gives Google the requested opportunity to file a motion, Google's counsel promises to do so "no later than February 28."

In the following sections I'll comment on the patent reexamination request, the attempt to have the copyright part of the suit dismissed quickly, and on the overall situation in that dispute, which looks like it's going to turn into an epic battle (if it isn't already).

Requests for reexamination of patents-in-suit are common. Frankly, I wonder why it even took so long. When Oracle sued Google in August, I thought this was going to happen within a few months.

As a long-standing opponent of software patents, I really don't like the seven patents Oracle asserted. Those aren't so-called "computer-implemented invention" patents that have a technical effect beyond software. They are just about executing instructions and organizing a computer's memory. Theoretically one could put all of that on a chip, but practically this is just about software.

I believe Google and the USPTO would do the world except Oracle a favor if some or ideally all of those patents could be invalidated. They are so broad that they are by no means specific to the Java programming language: I have looked at them and believe they read on most virtual machines of our times.

What I'd like to see happen and what I think will happen are two different things. I wouldn't be surprised if a couple of those patents were invalidated, or if the scope of some of the patent claims in question was narrowed. It depends on which arguments and what kind of prior art Google is able to present to the USPTO. But some of those patents -- probably most of them -- will survive. And as Scott Daniels explained, the lawsuit may just continue anyway.

Also, I doubt that the seven patents Oracle asserted are the only ones they have in their portfolio that could be used against Google. Oracle likely has even more patents that it could assert against Dalvik or other parts of Android. It's also possible that Oracle owns patents that could put Google under pressure in some of its other business areas, if Oracle ever felt forced to assert them.

This is already the second attempt by Google to defeat Oracle's copyright infringement allegations at an early stage. Google said that Oracle's original complaint wasn't specific enough concerning which Oracle copyrights were allegedly infringed by which Google software. The court agreed, and Oracle amended the complaint accordingly.

I watch a lot of cases like this. Google isn't the only defendant eager to get rid of a part of a lawsuit at the earliest opportunity. But I personally don't think Oracle's copyright case is so weak that this is likely to happen.

While I concur with Google that the world would be a better place without those virtual machine patents, I disagree with a couple of Google's statements on the copyright part of the lawsuit. The worst part to me is that Google suggests the creator of a large program should get away with a certain amount of unauthorized copying from someone else's work:

"Oracle has identified only twelve files -- out of the nearly one hundred thousand files that comprise Android -- that contain any materials (code or comments) that Oracle claims have been copied from Oracle's Works. [...] Finally, the portions of Android as to which Oracle alleges literal copying -- i.e., the twelve files identified in Oracle's interrogatory answer -- comprise in the aggregate less than one percent of Android and a similarly small percentage of the [Oracle's] Works. Even if such files were identical to Oracle files (which they are not), their use is de minimis and is not actionable."

This baffles all description. If you think about it, this "logic" would constitute a carte blanche for everyone with a large software project to steal smaller parts of other people's creations. Google's less-than-one-percent-claim may very well be true, but this kind of reasoning must be rejected altogether. Imagine a music publisher who puts out a collection of 101 songs and steals one or more of those songs from different other companies, but no more than one song per victim (and each victim has a repertoire of at least 101 songs). Mathematically, one song out of 101 is less than one percent, so in a world according to Google's lawyers there would be nothing wrong with this. This example shows that the proposed one-percent threshold would set a precedent that no law-abiding person could ever support.

[Update] I received a couple of questions from readers who were wondering whether the amount of code copied is comparable to a song, or much smaller than that. In my opinion, source code files containing entire Java classes are comparable to songs. I presented a number of files including 7 Java classes last month.

Google continues to defend itself vigorously. That's what it has to do, and the possible invalidation of one or more of Oracle's patents would fall under "collateral benefit" in my view. But if Google's attempt to undermine the rule of law in connection with copyright succeeded in any way, that would be bad news for authors -- not only programmers but also writers, composers and other creative people.

The patent part of the lawsuit is clearly the largest part of Google's problem. I guess what really has Google concerned about the copyright part of the case is that Google wouldn't want to be in a situation where it's found to infringe patents as well as copyrights and the question of damages for willful patent infringement comes up. In that context, the copyright part would really hurt the credibility of Google's claims that it never intended to infringe the patents-in-suit. We are talking about two distinct parts of the case, but in terms of how the court and at some stage a jury will view Google's behavior, the overall impression is going to be key.

All in all, I believe things are still going pretty much according to Oracle's plan. I don't see any reason for which Oracle would be under pressure to settle quickly and cheaply. Oracle knew that Google was going to defend itself, and I believe Oracle analyzed Google's small patent portfolio prior to going to court and determined that Google wasn't going to be able to mount a countersuit alleging that Oracle infringes any Google patents.

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About Me

Florian Mueller is a former award-winning intellectual property activist with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models and a variety of technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof.) He is now developing a game app for smartphones and tablet computers.